Citation Nr: 0503074
Decision Date: 02/08/05 Archive Date: 02/22/05
DOCKET NO. 02-10 943 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUE
Entitlement to an increased rating for bilateral hearing
loss, evaluated as 20 percent disabling prior to April 11,
2002, as 30 percent disabling from April 11, 2002 to May 4,
2003, and as 40 percent disabling on and after May 5, 2003.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Andrew E. Betourney, Counsel
INTRODUCTION
The veteran served on active duty from August 1948 to April
1950; from February 1957 to February 3, 1960; and from
February 23, 1960 to June 1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2001 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Louisville, Kentucky, which denied the veteran's claim for a
disability rating in excess of 20 percent for his service-
connected bilateral hearing loss. The veteran filed a timely
appeal to this adverse determination.
The Board notes that in October 2003, following several VA
examinations, the RO issued a rating decision which increased
the disability evaluation for the veteran's service-connected
bilateral hearing loss from 20 percent to 30 percent
disabling, effective April 11, 2002, and from 30 percent to
40 percent disabling, effective May 5, 2003. The Board notes
that in a claim for an increased rating, "the claimant will
generally be presumed to be seeking the maximum available
benefit allowed by law and regulation, and it follows that
such a claim remains in controversy where less than the
maximum available benefit is awarded." AB v. Brown, 6 Vet.
App. 35, 38 (1993). There is nothing in the record to show
that the veteran expressly stated that he was only seeking a
40 percent rating for his hearing loss disorder. Further,
there is no written withdrawal of this issue under 38 C.F.R.
§ 20.204 (2003). Therefore, the issue of an increased rating
for bilateral hearing loss remains in appellate status.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
when further action is required on his part.
REMAND
The Board observes that in March 2004, the veteran testified
at a hearing held via videoconference before the undersigned.
Unfortunately, the hearing recording was inaudible, and a
written transcript could not be made of the veteran's
testimony. Therefore, in June 2004 the Board sent the
veteran a letter informing him of this fact, and requesting
that he indicate whether he wanted to testify again. In a
response received by VA later that same month, the veteran
indicated that he wished to testify again at a hearing held
via videoconference before a Veterans Law Judge. To date, it
does not appear that such a hearing has been scheduled.
Therefore, the case is REMANDED to the RO via the Appeals
Management Center (AMC) in Washington, DC for the following
development:
The veteran should be scheduled for a
hearing to be held via videoconference
before a Veterans Law Judge at the next
available opportunity.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
_________________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).